Quick v. Wixon

34 N.Y. Sup. Ct. 592

• Court: New York Supreme Court
• Decided: September 15, 1882
• Status: Published

Opinions

Barnard, P. J.:

In no case can a party to an action recover costs when he fails to recover judgment against his adversary. The general rule in actions for the recovery of money is that the plaintiff must recover a judgment for fifty dollars to be entitled to costs. In appeals from Justices’ Courts, it is provided that in certain cases offers may be made to compromise. If no offer be made by the respondent, or if made and not accepted, then the respondent is entitled to costs, unless the decision is more favorable to the appellant by the sum of ten dollars; otherwise'the appellant is entitled to costs. (Code Civ. Pro., § 3070.) This has reference only to cases where some judgment is recovered by the respondent. Here the respondent entirely fails to recover any judgment. The case, therefore, falls under section 3229. By this section the plaintiff is only entitled to costs when he recovers a judgment. Unless the plaintiff is entitled to costs the defendant is so entitled. The appeal was an action at issue from the filing of the return. (Code Civ. Pro., § 3071.)

The order should be reversed, with costs and disbursements, and the defendant be declared entitled to the costs established for such action by section 3073 (Code).

Dykman, J., concurred.